How trial lawyers sabotage their own experts

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Attorneys will sometimes control the evidence they give to their expert in hopes of shaping the expert’s opinion to what is consistent with what they want,” Michael Kaplan, a Los Angeles forensic valuation expert who spoke at the conference, said in an interview.

Starting with hiring, an attorney can unknowingly sabotage his or her own expert.

For example, an engagement letter that spells out what an expert’s opinions are expected to be can come back to haunt the retaining lawyer — especially if it turns out that the expert’s opinions mesh with what the lawyer wants.

E-mails can cause trouble, too.

“We try to keep any written communications between experts and ourselves to a minimum,” said Carlton Marcyan, a family law attorney with Schiller, DuCanto & Fleck in Lake Forest, Ill., who also spoke at the conference. “Anything in the file, before or after the expert testifies, is subject to discovery.”

In a case two years ago, Kaplan was brought into a case by an attorney who sent a cover letter asking him to articulate that his client, “Mr. Smith,” was insolvent and his company was worth less than $1 million when he purchased it.

“As it turned out, Mr. Smith was insolvent and his company was worth less than $1 million. My opinions were very close to that. But on the witness stand, opposing counsel brought that letter out and asked me ‘Isn’t it true that you give counsel what he or she wants?’ These are the opinions they asked for and they are precisely the opinions you gave,” Kaplan said.

Inform your expert

It’s important to make sure your expert is fully informed.

Lawyers who leave their expert out of the loop risk pummeling on cross.

Marcyan suggests lawyers turn over all documents, including all pleadings and undistilled depositions.

In a family law case involving a dispute over the valuation of a client’s medical practice, Marcyan found out while cross-examining the opposing expert about his interrogatory answers that the opposing lawyer never showed the expert the interrogatories.

“Their expert is bleeding on the witness stand until finally he blurts out: ‘What are you reading from?’ He said, ‘I’ve never seen these before.’ All the responses had been answered by counsel,” said Marcyan.

Nowhere is it more misguided to leave your expert out in the cold than when faced with a Daubert challenge to exclude his or her opinion, Kaplan said.

A lawyer who opposes it alone, without involving the expert is making a mistake, he said.

“An expert knows what his methodology is, an expert knows what the reliability is, an expert knows what the error rates are if there are statistical issues, an expert knows if the methods are generally accepted, an expert knows if they are peer-reviewed. But if an expert isn’t brought into it, there’s a higher risk of the expert being excluded,” said Kaplan.

Don’t get too close

There can be too much of a good thing. Too much expert involvement can be a detriment — to your case and to your budget.

For example, allowing your expert to get too close to your client can compromise the expert’s objectivity and credibility on the stand.

This is especially true in family law cases where emotions run high, said Peter Walzer, a family law attorney with Walzer & Melcher in Woodland Hills, Calif., who recalled a child custody case where the other side’s expert psychologist was admonished by the judge for jumping up and down in court.

“It really won the case for us because their expert was so wrought up by the fate of her client,” said Walzer.

It’s important to establish a budget with you experts.

But an expert who is hired on a shoestring may take risky shortcuts, warned Kaplan.

If you know money is tight, get creative and narrow the scope of the expert, suggested Marcyan.

In a business evaluation, for example, there may be an earlier valuation that can be updated instead of starting from scratch.

Another way to trim the expert budget is to look for individuals just starting out as expert witnesses who are willing to work for lower rates, Kaplan said.

Whether the expert is on your side or the other side, new or experienced, it’s crucial to conduct due diligence.

For example, don’t be talked into stipulating to an opposing expert’s credentials.

Walzer was once asked by a judge to stipulate to the expertise of a popular real estate appraiser on the other side but found out on investigation that he was not licensed.

As for your own experts, double-check their work.

Simple errors can kill an expert, said Marcyan, who frequently finds errors on spreadsheets like Excel.

“There’s nothing worse than an expert who can’t add correctly,” he said.